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Due Process Clause

by Stephen Vladeck, Professor of Law and Associate Dean for Scholarship, Washington College of Law, American University

The more that I grapple with the so-called “white paper” prepared by the Department of Justice to provide at least some overview of the legal rationale behind the targeted killing of U.S. citizen terrorism suspects such as Anwar al-Awlaki, the more I’m reminded of Justice Robert Jackson’s dissenting opinion in the Mezei case -- decided in March 1953 at the height of the Cold War. As Jackson there explained:

Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices.

Although Jackson lost in Mezei, his understanding of due process eventually became hard-wired into the Supreme Court’s due process jurisprudence, culminating in a number of decisions in the 1970s in which the Court recognized that the heart of the Due Process Clause was an individual’s entitlement to a hearing before a neutral decision maker.

The DOJ white paper advancing broad and opaque arguments for the executive branch to kill U.S. citizens thought to be connected with Al Qaeda is a “radical jurisprudential notion,” Salon’s David Sirota writes. He calls the jurisprudential notion “Too Big to Curtail.”

That moniker, he continues, “is the most accurate label to describe the machinery of the government’s ever-expanding drone war.”

The DOJ’s white paper concludes three conditions must be met for the federal government to kill a U.S. citizen who is integral to Al Qaeda or “an associated force of” of the terrorist group without violating the Constitution. They require a high-ranking federal official who says the person targeted for killing is an “imminent threat to the country,” capturing the person is “infeasible,” and the lethal operation doesn’t violate laws governing use of force during war time.

Sirota says the “most harrowing takeaway” from the DOJ document is that the killing of a U.S. citizen abroad can be made by a high-ranking government official even if there is no “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Calling balls and strikes, is that what marriage equality will come down to? Arguably one of the more conservative Supreme Court’s in modern history has chosen to wade into a major equality battle, and its Chief Justice once said that judging is akin in some ways to being a baseball umpire.

Of course since that statement during his confirmation hearings in 2005, the Roberts Court has dealt with matters far weightier than those found on a baseball field. The Court has also shown that judging is a good bit more complicated. Have you read all the opinions, concurring opinions and dissents in the Court’s actions this year on the landmark health care reform law?

Janson Wu, a staff attorney for Gay & Lesbian Advocates & Defenders (GLAD), noted some concern, telling ACSBlog, “The fact that the Court decided to hear both a challenge to DOMA and Proposition 8 presents obvious opportunities and risks. All of us fighting for LGBT rights obviously hope for the best case scenario and realize that there is so much work to make that happen. Now is not the time to wait and see how the Court decides. Instead, it is more important than ever for use to continue to achieve victories at both the state and federal level in the next few months, before the Supreme Court decides these cases.”

While those pushing for marriage equality are rooting for the demise of DOMA, a blatantly discriminatory law that has treated same-sex couples as second class citizens denying them scores of federal benefits that their straight counterparts enjoy or take for granted, others are concerned about a potentially disastrous ruling in the Proposition 8 case.

By Lawrence Rosenthal, Professor of Law, Chapman University School of Law. Professor Rosenthal filed an amicus brief on behalf of the U.S. Conference of Mayors in McDonald v. City of Chicago in support of Chicago.

In its 2008 decision in District of Columbia v. Heller, a closely divided Supreme Court, applying what the majority characterized as "the original understanding of the Second Amendment," invalidated D.C.'s prohibition on the possession of handguns. Relying on eighteenth-century sources, the Court defined the Second Amendment right to "keep and bear arms" as "the individual right to possess and carry weapons in case of confrontation," and held that a prohibition on handguns was unconstitutional. The Court cautioned, however, that the Second Amendment is only a limitation on the powers of Congress, and reserved decision on the question whether it also applied to state and local governments by virtue of the Fourteenth Amendment. The Court noted that its nineteenth-century decisions had refused to apply the Second Amendment to state and local laws, but added that these cases "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."

The Court will now confront the applicability of the Second Amendment to state and local laws in McDonald v. City of Chicago. At issue is the constitutionality of Chicago's handgun ban. Chicago and its amici rely on the approach to incorporation of the first eight amendments within the Fourteenth that the Court has taken for nearly a century - asking whether a particular right is "implicit in the concept of ordered liberty." Under this approach, many of the rights in the first eight amendments have been incorporated within the Fourteenth Amendment's Due Process Clause - but not all.

The widely anticipated Second Amendment case pending before the Supreme Court is creating strange bedfellows, reports Jess Bravin in The Wall Street Journal. Bravin writes that, "as gun-rights groups battle each other over how to argue the case, ... some left- and right-leaning legal theorists unite over how to interpret the Constitution."

As noted at ACS's Supreme Court Preview for the Court's current term, some progressive advocates support incorporation of the Second Amendment to the states in McDonald v. Chicago. They see McDonald as an opportunity to revive the Fourteenth Amendment's Privileges or Immunities Clause, which was neutered by the Supreme Court in the 1873 Slaughterhouse Cases. Since then, incorporting rights to bar infringement by state action has been a burden carried by the Fourteenth Amendment's Due Process Clause, which speaks merely to deprivations of rights, as opposed to the broader language of the Privileges or Immunities Clause.

As to the Second Amendment, the Supreme Court left the question of incorporationfor another day in the 2008 D.C. v. Heller decision, which -- for the first time -- recognized the right to bear arms as an individual right, rather than a right bestowed upon members of a militia collectively. And that day will be before the Court soon in McDonald.